flS +3 7/DOCKETED

USNRCUNITED STATES OF AMERICA

NUCLEAR REGULATORY COMMISSION 2002 APR 29 AM 10: 28

BEFORETHEATOMICSAFETYANDLICENSINGBOARD'FF' F- -iLL'RETARYRUL&AIK1HGS ANDADJUDICATIONS STAFF

In the Matter of: ) Docket No. 72-22-ISFSI)

PRIVATE FUEL STORAGE, LLC ) ASLBP No. 97-732-02-ISFSI(Independent Spent Fuel )Storage Installation) ) April 15, 2002

STATE OF UTAH'S MOTION IN LIMINE TO STRIKEAPPLICANT'S PREFILED DIRECT TESTIMONY

(Unified Contention Utah L/QQ)

The State of Utah moves the Board to strike the Applicant's prefiled direct testimony,

relating to Unified Contention Utah L/QQ. This motion is based on the following grounds: the

prefiled testimony is inexcusably late and should be stricken; portions of the testimony of Singh

and Soler and that of Trudeau and Wissa' are based on facts not in evidence and are otherwise

unreliable and should be stricken.

DISCUSSION

Admissibility of evidence in an NRC adjudicatory proceeding specifies that "[o]nly

relevant, material, and reliable evidence which is not unduly repetitious will be adnitted." 10 CFR

§ 2.743(c). Since NRC Rules of Practice do not expressly address expert testimony, the Federal

Rules of Evidence ("FRE") provide appropriate guidance.2 In response to Daubert v. Merrell

Dow Phannaceuticals. Inc., 509 U.S. 579 (1993), FRE 702 was amended in 2000 to provide:

If scientific, technical, or other specialized knowledge will assist the trier of fact to

' Testimony of Krishna P. Singh and Alan I. Soler on Unified Contention Utah L/QQ;Joint Testimony of Paul J. Trudeau and Anwar E. Z. Wissa on Section C of Unified ContentionUtah L/QQ.

2 See, eg, Duke Power Company (William B. McGuire Nuclear Station, Units 1 and 2),ALAB-669, 15 N.R.C. 453, 475 (1982).

e sis

understand the evidence or to determine a fact in issue, a witness qualified as anexpert by knowledge, skill, experience, training, or education, may testify thereto inthe form of an opinion or otherwise if (1) the testimony is based upon sufficientfacts or data, (2) the testimony is the product of reliable principles and methods,and (3) the witness has applied the principles and methods reliably to the facts ofthe case.

I. PFS's Testimony Was Prefiled Inexcusably Late and as Such it Prejudices the State.

In this proceeding the parties have been instructed to file simultaneous prefiled testimony.

SeePrivate Fuel Storage Proceeding General Schedule, as revised 9/20/01. April 1, 2002 was the

date by which electronic copies of prefiled testimony for Unified Contention Utah L/QQ were to

be filed with the Licensing Board. Id. PFS did not commence filing its electronic pre-filed

testimony until 5:34 am EST (3:34 am MDT) April 2, 2002 and did not conclude filing its

electronic pre-filing testimony until 6:16 pm EST on April 2. See email list, Exhibit 1, and email

message, Exhibit 2, attached hereto. While the State recognizes the hardship involved in meeting

the Board's deadline on such a broad and technically challenging issue as Unified Contention Utah

L/QQ, nonetheless PFS's inexcusable lateness has unduly prejudiced the State.

Of particular concern to the State is the fact that PFS had many hours to read, review and

have its witnesses analyze the State's prefiled testimony prior to the time PFS filed its testimony.

PFS therefore had the opportunity to change its testimony in response to the State's testimony.

PFS's testimony of Singh and Soler on Section D of the unified contention, for example, was filed

at 8:25am EDT (6:25 am MST), five hours after the State filed its testimony of Bartlett and

Ostadan on Section D. See Exh. 1. Likewise, PFS's testimony of Trudeau on Section C of the

unified contention was filed at 9:34 am EST (7:34 am MST), more than 9 hours after the State filed

its testimony for Bartlett on Section C. Id. Yet another example is PFS's Key Determinations,

filed at 6:16 pm EST and more than 15 hours after the State filed its Key Determinations. See Exh.

2. Of course, all parties would have relished more time to continue writing testimony, gather

2

exhibits and complete the additional documents requested by the Board (ie., prefaces to testimony

and key determinations). But this is a fast-paced proceeding - primarily at the urging of the

Applicant - and with simultaneous electronic filings, a party's inexcusable lateness may prejudice

another party who has made every effort to meet the filing deadline.

In this case, the State has been unduly prejudiced byPFS's opportunity to respond to the

State's prefiled testimony and by the additional time (up to 15 hours) PFS has had to complete

filing its testimony. The State should not be penalized by making a good faith effort to meet the

Board's filing deadline. Accordingly, the State requests the Board to strike PFS's inexcusable late

pre-filed testimony or enter such orders as would create a level playing field.

II. Portions of PFS's Testimony Contains Unreliable Testimony Based onUnsupported or Misleading Facts and Data or on Documents Not Produced to theState, and Should Be Stricken.

Portions of the opinions rendered in the Singh and Soler testimony are based on facts and

data that are not contained in their testimony. Furthermore, documents relating to those facts,

data, and methodology have not been produced to the State. As such, the testimony is not based

upon sufficient facts or data, the testimony may not be the product of reliable principles and

methods, and the reliability of the witnesses' application of the principles and methods to the facts

and data cannot be ascertained. If the testimony is being offered as expert opinion, it does not

meet FRE 702, is unreliable, and should be stricken.

A. Singh & Solar Testimony- Additional Re-runs

In Answer 40 of the Singh and Soler testimony, Dr. Soler states: "In conjunction with the

preparation for this testimony, we ran additional simulations to test alleged deficiencies that the

State's experts claimed might affect our previous analysis by re-running our analyses using different

3

assumptions than those used in the above described analyses." 3 Singh/Soler Testimony A.40 at 28.

The re-runs were conducted using VisualNastran ("VN") computer code. Id. AA113 at 62.

Answers 112 through 121 relate to these additional VN re-runs. In Answer 120 (no designated

witness sponsor), either one or both of the witnesses claim that certain results of the VN re-run

"agree with the results predicted by DYNAMO." Id. at A120 at 68; see also id. at A.40 at 28.

There is no basis for the foregoing statement. PFS did include a computer animated video on CD-

ROM as part of this testimony' but these animations - or anything else in the testimony-- do not

contain any rigorous analysis to confirm that the VN re-run agree with the DYNAMO results.5

Accordingly, Answers 40 and 120 should be stricken.

If the witnesses' responses to Questions 112-121 are permitted to stand, then the State will

have to elicit newly developed information from these witnesses during cross examination - just

like the State will have to do with some of the Staff's witness. In addition to lengthening the

proceeding, it will not allow the State to develop its case for trial. In addition to the unreliability of

the answers - which do not comport with FRE 702 - those answers also prejudice the State's

preparation of its case for trial. Accordingly, Answers 112 through 121 should be stricken.

B . Singh & Soler TVA Pad Flexibility Analysis

In answer to Question 60, Dr. Soler claims that Holtec has analyzed the pad flexibility of

the proposed Sequoyah Nuclear Power plant for the Tennessee Valley Authority ("TVA"). In

3The above described analyses refers to Holtec reports that had been produced to the Stateand on which the State had the opportunity to depose these witnesses.

4The video files on the CD-ROM were identified as PFS Exhibit MM; the exhibit the Statereceived of the CD-ROM is identified as PFS Exhibit 00.

'On April 12 the State received a copy of Holtec Report No. HI-2022854, PFSF BeyondDesign Basis Scoping Analyses, dated April 12, 2002. This report is probably based on the re-runsbut because it post-dates the testimony by eleven days and has just been produced to the State, itdoes not change the argument that the testimony is not based on known facts and data, or reliableapplication of principles and methods to the facts and data.

4

Answer 61, Dr. Soler draws conclusions about the flexibility of the pad at the PFS site based on

the TVA pad flexibility analysis. Singh/Soler Testimony at 39. Yet the TVA pad flexibility report

is not included as an exhibit to the testimony nor has the TVA pad flexibility report been produced

to the State.6 Moreover, there is a significant dispute between PFS and the State as to the flexiblity

or rigidity of the cask storage pad. Dr. Soler's opinions are not based on facts or data that are

offered into evidence; the reliability of the methods he used to reach his opinion are unknown; and

the conclusions drawn therefrom are unrealiable. Accordingly, Answers 60 and 61 do not comply

with FRE 702 and are otherwise unreliable and should be stricken in their entirety.

C. Trudeau & Wissa Testimony - Sulfates Test Results

In the Trudeau and Wissa Testimony on Section C of the unified contention, Mr. Trudeau

presents a summary of sulfate test results. Trudeau/Wissa Testimony A64 at 44. The table is

misleading and unreliable because it does not contain all of the sulfate test results from PFS's soil

cement testing program. While Mr. Trudeau mentions that the table excludes tests on two

samples, Mr. Trudeau fails to mention that the excluded samples show sulfates in the range of

13,800 ppm sulfates. Seepage 2 from calculation PO-38 (PFS bates number 68218), attached

hereto as Exhibit 3. The results in the testimonytable range from a low of < 10 to a high tp 560

ppm sulfates. Accordingly, Answer 64 should be struck in its entirey because it contains the

6On various occasions, the State has requested from PFS all documents supporting witnesstestimony. See eg, State of Utah's Fourteenth Set of Discovery Requests Directed to theApplicant" dated February 7, 2002 at 9 in which the State propounded the following discoveryrequest:

All documents (including experts' opinions, workpapers, affidavits, and othermaterials used to render such opinion) supporting or otherwise relating totestimony or evidence that you intend to use at the hearings on each Utah admittedcontention, including without limitation unified contention Utah L/QQ.

PFS did not produce the TVA pad flexibility report in response to this document request.

5

misrepresentation that site soils at PFS contain very low levels of sulfates. There is no evidence or

data presented that the excluded test samples are from the Upper Bonneville clays and not from

the eolian soil layer.

CONCLUSION

The Board should strike PFS's inexcusably late pre-filed testimony because, interalia, it has

given PFS the opportunityto respond to the State's prefiled testimony, or the Board could enter

such orders as would create a level playing field.

The Board should strike Answers 40 and 112-120 of the Singh/Soler Testimony as being

unreliable. The Board should also strike from the Singh/Soler Testimony Answers 60 and 61 in

their entirety because the opinions rendered are derived from facts and data and methods not in

evidence or contained in documents not produced to the State and are otherwise unreliable.

Finally, the Board should strike from the Trudeau/Wissa Testimony Answer 64 in its

entirety because is it misleading and unreliable.

DATED this 15th day of April, 2002/

spectillysubmitte

Deise Chancellor, Assistant Attorney GeneralFred G Nelson, Assistant Attorney GeneralConnie Nakahara, Special Assistant Attorney GeneralDiane Cun-an, Special Assistant Attorneys GeneralAttorneys for State of UtahUtah Attorney General's Office,160 E. 300 So., 5h floor, P.O. Box 140873Salt Lake City, UT 84114-0873Telephone: (801) 366-0286, Fax: (801) 366-0292

6

CERTIFICATE OF SERVICE

I hereby certify that a copy of STATE OF UTAH'S MOTION IN LIMINE TO STRIKE

APPLICANTS PREFILED DIRECT TESTIMONY (Unified Contention Utah L/QQ) was

served on the persons listed below by electronic mail (unless otherwise noted) with conforming

copies by United States mail first class, this 15t' day of April, 2002:

Rulemaking & Adjudication StaffSecretary of the CommissionU. S. Nuclear Regulatory ConmmissionWashington D.C 20555E-mail: hearingdocket@nrc.gov(o07rgtd and tuo cois)

Michael C Farrar, ChairmanAdministrative JudgeAtomic Safety and Licensing BoardU. S. Nuclear Regulatory CommissionWashington, DC 20555-0001E-Mail: mcfinrc.gov

Dr. Jerry R. KlineAdministrative JudgeAtomic Safety and Licensing BoardU. S. Nuclear Regulatory CommissionWashington, DC 20555E-Mail: jrk2@nrc.govE-Mail: kjerry~erols.com

Dr. Peter S. LamAdministrative JudgeAtomic Safety and Licensing BoardU. S. Nuclear Regulatory CommissionWashington, DC 20555E-Mail: psl~nrc.gov

Sherwin E. Turk, Esq.Catherine L. Marco, Esq.Office of the General Counsel

Mail Stop - 0-15 B18U.S. Nuclear Regulatory CommissionWashington, DC 20555E-Mail: set~nrc.gov

E-Mail: clhnnrc.govE-Mail: pfscaseonrc.gov

Jay E. Silberg, Esq.Ernest L. Blake, Jr., Esq.Paul A Gaukler, Esq.Shaw Pittman, LLP2300 N Street, N. W.Washington, DC 20037-8007E-Mail: JayjSilbergashawpittman.comE-Mail: ernestblake@shawpittman.comE-Mail: paul gaulder@shawpittman.com

John Paul Kennedy, Sr., Esq.David W. TuftsDurham Jones & Pinegar111 East Broadway, Suite 900Sat Lake City, Utah 84111E-Mail: dtufts@djplaw.com

Joro Walker, Esq.Land and Water Fund of the Rockies1473 South 1100 East, Suite FSalt Lake Cty, Utah 84105E-Mail: utah&lawfund.org

Larry EchoHawkPaul C. EchoHawkMark N EchoHawkEchoHawk Law Offices151 North 4t Street, Suite AP.O. Box 6119Pocatello, Idaho 83205-6119E-mail: paultechohawkcom

7

Tim Vollmann330 1-R Coors Road N.W. # 302Albuquerque, NM 87120E-rnail: tvollmann~hotmiail.com

James M. CutchinAtomic Safety and Licensing Board PanelU.S. Nuclear Regulatory CommissionWashington, D.C. 20555-0001E-Mai: jmc3@nrc.gov(elawvic copy only)

Office of the Commission AppellateAdjudication

Mail Stop: 014-G-15U. S. Nuclear Regulatory CommnissionWashington, DC 20555

Den'i-se Chancello7Assistant Attorney GeneralState of Utah

8

EXHIBIT I

Page 1 of I

Et t Jean Btaxioap Connie Nakahara

M p Jean BraxtonEjp Jean Brwton

Mp Jean Braxtonme Jean Braxton

Zjj l Jean Braxton

12 Connie Nakahara

ij i "Shuwin Tutk" <SET(0rci sp Jean Braton

f 3 Jean Braxton

Cst Jean BraxtonEJp Connie NakaharaMe, Connie NakahalaMJ Jean Braxtonap Jean Braxton

MP Jean BraxtonOp Connie Nakahara

5i , Conine NakaharaEj o "Sherwin Turk" <SETtG

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tteatn teswnny of Batny 5 Osomon on

Propnetary fingState's Testimony of Dr. SteverExh. 95-96Exh. 97Exh. 98-99Exh. 100-104State's Testinony of DL Barfteit and CNRC Staff Testimony * Contention LAState~s MixStats Testimony of Drs BanteExhbs 110118State's Testimony of Dr. WalterState's Testimony of DL MarvinStale's Testimony Utah LfQQ 91Exhibits 129-133State's Key Determinations andState's Testimony of Dr. MarvinState's T esknony of Drs Khan and fStaff Preacet and Key fletemiTesinony of Robert Youngs and WetTestfmony of Waye Lewis together >PreFed Testtirmo of Krishna P. SkinTestimony of Bruce Ebbeson togetberTestony of Trudeau and Wissa togiT socl~ m ni elr i clon.t W ethpsm t R^ i a-

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04/02/02 01:324A04/O2/02 01:32AM

04/02O02 01:40AM04/02/02 01:.41AM04/02102 011:41AM04/0202 31: 46AMW002/2 01:51AM

402/02 01:524A040202 02:42AMW02/02 03:34AM04/02/02 03,34M04/02 206:254AM04/02/02 07:06AM0/022 07:07AMfUln2J0%flP A U M .

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Testimony of Bruce Ebbeson together 0402A02 07:06AdTestimony of Trudeau and Wissa toge 04102/02 0:07AMTestimony of Trudeau together wib R 04102102 07:34AMCornell Resume 04/02/02 07:51AMCornell TestimorW, Reference L 04/02/02 07:51AMTrudeau/ina Exhibits 04/02/(2 09,:0Trudeau/Wissa Exhibits 04102/02 08;24AMTransnittinq PFS Document 04/0212 11:5AMSingh end Solet Testimony Preface at 04102/02 12:36PMComer Testimony Preace 04/0202 12:38PMSingh/Soles ehs NN. QG-TT 04/02/O2 12-52PMYoungs. Tseng Exhibits 04/02/02 12:59PMLewis Exhibits 04102/02 01:24PMTrudeau V V 04/0J202 01 :24PMTrudeau Exhiit WW 04/0202 01125MTrudeau UU 04/02/02 01128Youngs. asong Exhibit IL 04/02/02 01:30PMYoungs. Tseng Exhibit MM 04/02102 U1:33PMTrudeau/v/insa Ehibis 04/02/02 02:08PMLetr from Shetwn Turk to the Licer 04/02/02 02:57PMStaff Exhibit P -attaphed (in WORD Ir 04102102 03:05PMState's Notice ol Errata 04/02/2 03:14PMStaff Exhibits R end S a attache 04/02102 03:-17PM

Staff Exhibits S and T - attache 04/02/02 03:22PM, tastr w trlbilta~~ .I V .W ja n d M -. . 1 J ~ 0 OI2PIPM.tn .- 2

file://F:\User\Skullvly\Hearing 2\Cont L QQ\sentitem2.gif 4/15/02

EXHIBIT 2

Ia enise Chancellor - [Fwd: Key Determinations and Certificate of Service] Page 1 *

From: Diane Curran <dcurran~harmoncurran.com>To: Denise Chancellor <dchancelatt.state.ut.us>Date: 4/9/02 11:29AMSubject: [Fwd: Key Determinations and Certificate of Service]

-------- Original MessageSubject: Key Determinations and Certificate of ServiceDate: Tue, 2 Apr2002 18:16:15 -0500From: Paul.Gaukler~shawpittman.comTo: PFSSERVICELISTChairmanFarrar~shawpittman.com

Dear Sir/Madam:

Attached to this e-mail are the above-referenced documents in the MatterofPrivate Fuel Storage L.L.C. (Private Fuel Storage Facility) Docket No.72-22 which are being filed today via first class mail and e-mail. Ifyouhave any questions please give Mr. Gaukler a call at (202) 663-8304.

(See attached file: #1229037 v1 - PFS Prefiled Testimony Certificate ofService.doc)(See attached file: Key Determinations.doc)

These documents are not being filed by way of the NRC's EIE pilotprogrambecause of difficulties that we have had in accessing that program duetoincompatible internet server differences. We are working with the NRC'sEIE program personnel to resolve this difficulty and will beparticipatingin the program upon its resolution.

Sincerely,Paul Gaukler

This electronic message transmission contains information from the lawfirmShaw Pittman LLP (in the UK, the multinational partnership, ShawPittman)that may be confidential or privileged. The information isintended solely for the recipient and use by any other party is notauthorized. If you are not the intended recipient, be aware that anydisclosure, copying, distribution or use of the contents of thisinformation is prohibited.If you have received this electronic transmission in error, pleasenotify

EXHIBIT 3

OCT-31-2001 WED 04:57 PM AGEO FAX NO. 8015666493 PI 03

C061obor 3 1, 2001Stgre arJ WohSTer Project No. J.0. 05996.02P A jo 2

Applied Geotechnical Engineering Consultants, Inc.

Table ISummary of Laboratory Testing

I es;t flit No. Sampie No. IDepth (Feet) Bucket Water Solubl_ ,_ _ _ _ _ _ _ _ _-_ _ _ _ _ _ ._ _ _ _ _ _ _ .. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

1 1 0.2 1 of 4... ~. _ _ . .651

4 1 0-2 4 of4 [ _

3 1 0-2 3of4. . .___. .. .___100

3 1 0-2 4of4

1 0-2 3 of 4 530

2 2 2-4 3of4 1.... . _ ... 1 ,800

4 2 2-4 2of4

13 1 0-2 n5a..... _ ...... ._560

14 1 0-2 n/a

l lb 1 1 0-2 n/aF -} - -- t .120

1 0-2 n/a

L ___1_1 |_ 2 nla _ 110

1 _ 0-2 _ nla _ 140

[I 7 I 1 1 0-2 nea 375

1 0-2 nla <10

9 1 10-2 I n/a | 210

10 1 1 1 0-2 I n/a 1 250

|l 11 1 1 1 0-2 j n/a 1 430

21 0-2 n/ 110

PFS-47973 68218